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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PACCIONE v. ITALY - 16753/90 [1995] ECHR 13 (27 April 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/13.html Cite as: [1995] ECHR 13, 20 EHRR 396, (1995) 20 EHRR 396

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In the case of Paccione v. Italy (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr C. Russo,

Sir John Freeland,

Mr L. Wildhaber,

Mr G. Mifsud Bonnici,

Mr B. Repik,

Mr P. Jambrek,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 27 January and 22 March 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 49/1994/496/578. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the Italian Government

("the Government") on 12 September 1994, within the three-month period

laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of

the Convention. It originated in an application (no. 16753/90) against

the Italian Republic lodged with the European Commission of Human

Rights ("the Commission") under Article 25 (art. 25) by an Italian

national, Mr Francesco Paccione, on 24 February 1989.

The Government's application referred to Articles 44, 45 and 48

(art. 44, art. 45, art. 48) and to the declaration whereby Italy

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the application was to obtain a decision as

to whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 6 para. 1 (art. 6-1) of the

Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30). The lawyer was given leave by the President

to use the Italian language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio Mr C. Russo,

the elected judge of Italian nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21

para. 3 (b)). On 24 September 1994, in the presence of the Registrar,

the President drew by lot the names of the other seven members, namely

Mr R. Bernhardt, Sir John Freeland, Mr L. Wildhaber,

Mr G. Mifsud Bonnici, Mr B. Repik, Mr P. Jambrek and Mr K. Jungwiert

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Government, the

applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

Government's memorial on 25 November 1994 and the applicant's memorial

on 13 December 1994. The Delegate of the Commission did not submit any

written observations. On 9 January 1995 the applicant lodged his

claims for just satisfaction.

5. On 22 November 1994 the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 January 1995. The Court had held a preparatory meeting beforehand.

Shortly before the hearing, the applicant's lawyer, Mr Rocchio,

informed the registry that he would not be present.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, on secondment to

the Diplomatic Legal Service,

Ministry of Foreign Affairs, Co-Agent;

(b) for the Commission

Mrs J. Liddy, Delegate.

The Court heard addresses by Mrs Liddy and Mr Raimondi.

AS TO THE FACTS

7. Mr Francesco Paccione, a retired district medical officer born

in 1905, lives in San Remo.

8. On 1 March 1980 San Remo District Council communicated to him its

decision determining the amount of his ordinary retirement pension.

The applicant claims that he applied to the Court of Audit on

7 April 1980, complaining that the assessment did not take account of

all the relevant factors. In a letter of 11 April 1985 he asked for

his application to be dealt with speedily. This request was registered

on 18 April 1985 and it was listed on the 20th. On 24 April 1985 the

Court of Audit asked the relevant ministry for the applicant's

administrative file, which was transmitted to it on 13 December 1985.

9. On 14 April 1989 the Court of Audit set the case down for hearing

on 9 June, and directed that all documents were to be submitted by

20 May 1989 at the latest. The applicant was notified of these dates

on 19 May 1989 and informed the court that he could not keep to them.

He asked for new time-limits to be fixed so that he could instruct

counsel, which he did, according to the Government, on 19 October 1989.

10. On 3 July 1990 the applicant's lawyers successfully requested

that a hearing be set down for 19 April 1991. On the appointed day

they were absent abroad for professional reasons, and the lawyer they

had briefed to stand in for them requested an adjournment without their

knowledge.

On their return they asked for the case to be tried as quickly

as possible.

11. At the close of the hearing held on 11 March 1992 the Court of

Audit, noting that the application had not been served on the Treasury,

ruled that this procedural defect made it inadmissible. The text of

the judgment was deposited in the registry on 4 March 1993.

PROCEEDINGS BEFORE THE COMMISSION

12. Mr Paccione applied to the Commission on 24 February 1989.

Relying on Article 6 para. 1 (art. 6-1) of the Convention, he

complained of the length of the trial of his action in the Court of

Audit.

13. The Commission declared the application (no. 16753/90) admissible

on 12 January 1994. In its report of 11 May 1994 (Article 31)

(art. 31), it expressed the unanimous opinion that there had been a

violation of Article 6 para. 1 (art. 6-1). The full text of the

Commission's opinion is reproduced as an annex to this judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 315-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT

14. In their memorial the Government asked the Court to hold that

there had been no violation of the Convention in the case.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

15. The applicant complained of the length of the proceedings in the

Court of Audit. He alleged a violation of Article 6 para. 1 (art. 6-1)

of the Convention, under which,

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ..."

16. The Government contested this claim, whereas the Commission

upheld it.

17. Mr Paccione contended that the period to be taken into

consideration had begun on 7 April 1980 (see paragraph 8 above), not

on 11 April 1985 as the Government had argued.

The Court merely notes that even after being invited by it to

submit evidence supporting this assertion, the applicant did not prove

that he had applied to the Court of Audit in 1980. Only his letter of

11 April 1985 was registered and listed by the registry of that court

(see paragraph 8 above). This latter date therefore marked the

beginning of the proceedings, which ended on 4 March 1993, when the

judgment dismissing his application was made public on being deposited

in the registry (see, as the most recent authority, the Muti v. Italy

judgment of 23 March 1994, Series A no. 281-C, p. 56, para. 12). They

thus lasted nearly seven years and eleven months.

18. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment.

19. The Government pleaded the applicant's conduct and the complexity

of the case.

They argued that Mr Paccione had contributed to slowing down the

proceedings by requesting two adjournments and that it ill became him

now to complain to the Court of an infringement of his right to a

speedy hearing of his case.

The lapse of time between the lodging of the application and the

first hearing (from 11 April 1985 to 9 June 1989) had been due to the

need to retrace the history of Mr Paccione's civilian and military

service, which had proved to be a very time-consuming task.

20. Like the Delegate of the Commission, the Court considers that the

first adjournment was justified on account of the short interval

between the date on which the applicant received notification that a

hearing had been set down (see paragraph 9 above) and the last day on

which he could have lodged documents for that hearing (scarcely

twenty-four hours, from 19 to 20 May 1989).

The second adjournment did, admittedly, cause a delay of just

under eleven months.

As regards the complexity of the case, the Court accepts that the

authorities may have experienced difficulties in collecting the

documents evidencing the applicant's service record. However, that is

not relevant in the instant case, since the Court of Audit waited until

11 March 1992 before dismissing the application on the sole ground that

it had not been served on the Treasury. As this was a condition of

admissibility, the Court of Audit should have noticed immediately that

it had not been satisfied. The investigation was therefore

unnecessary.

21. In the light of the above considerations, the Court concludes

that there has been a violation of Article 6 para. 1 (art. 6-1) of the

Convention in the present case.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

22. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

23. On 9 January 1995 Mr Paccione's lawyer filed with the registry

his client's claims in respect of damage sustained. He also sought

reimbursement of costs and expenses.

24. The Government argued that these claims were inadmissible as

being out of time.

25. The Court notes that Rule 50 para. 1 provides: "Any claims which

the applicant may wish to make under Article 50 (art. 50) of the

Convention shall ... be set out in his memorial or, if he does not

submit a memorial, in a special document filed at least one month

before the date [of] ... the hearing." However, Mr Rocchio did not

submit claims for just satisfaction either in his memorial or even

before the final limit of one month before the hearing, despite

repeated reminders by the registry.

The time allowed in this case for submission of these claims

appears sufficiently long; they must therefore be dismissed as being

out of time.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1

(art. 6-1) of the Convention;

2. Dismisses the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 27 April 1995.

Signed Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar